Stuper v. Denver

25CA0833 Stuper v Denver 04-30-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0833
City and County of Denver District Court No. 23CV31467
Honorable Jon J. Olafson, Judge

Cory Stuper and Brian Finneran,

Plaintiffs-Appellants,

v.

City and County of Denver,

Defendant-Appellee.

ORDER AFFIRMED

Division VII
Opinion by JUDGE JOHNSON
Pawar and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 30, 2026

Lane Pass & Associates, P.C., Sean J. Lane, Brittney M. Townsley, Aurora,
Colorado, for Plaintiffs-Appellants

Miko Brown, City Attorney, Jennifer L. Jacobson, Assistant City Attorney,
Denver, Colorado, for Defendant-Appellee
¶1 Plaintiffs — two police officers employed by the Denver Police

Department (the Department) — Cory Stuper (Officer Stuper) and

Brian Finneran (Officer Finneran) (collectively, the officers), appeal

the district court’s order affirming the disciplinary action imposed

against them by the Denver Civil Service Commission (the

Commission), an agency of defendant, the City and County of

Denver (the City).

¶2 The officers allege that the Commission erred by (1) upholding

the hearing officer’s determination that an exigent circumstance

existed for the officers to remain in the victim’s home after the

victim revoked consent for them to be in the residence; (2) failing to

address the City’s nondisclosure of a video under Denver Civil

Service Commission Rule 12 (Commission Rule 12); and (3) failing

to address the City’s spoliation of the record and late disclosure of

evidence, resulting in insufficient evidence to support the discipline

imposed and violating their due process rights. We disagree with

their contentions and, therefore, affirm the Commission’s decision.

I. Background

¶3 In June 2021, the officers responded to a 911 call involving a

domestic violence incident between the victim and a male

1
perpetrator. The daughter of the victim called 911 after receiving

multiple distressed phone calls from her mother. The 911

dispatcher provided the officers with call notes indicating what the

daughter heard on the phone with her mother.

¶4 The officers arrived at the residence roughly fifteen minutes

after the daughter reported the incident. Upon their arrival, the

home was unlit, and the officers saw no signs of movement inside.

A man then exited the front of the residence, consented to the

officers entering the premises, and admitted that he and the victim

had an argument earlier in the evening.

¶5 In the home, the officers spoke briefly with the victim, who

remained under the covers of her bed throughout the conversation.

She told the officers that she was okay, but the man was nearby

during the police questioning. After she told the officers to leave,

they did so.

¶6 Unbeknownst to the officers, the victim endured internal

bleeding and a ruptured spleen and did not receive medical

attention until her son-in-law arrived later in the evening, having

traveled from Colorado Springs to check on his mother-in-law. She

2
spent five weeks in the hospital and required five surgeries to

address the injuries she sustained.

¶7 In July 2022, as part of an investigation handled by the

Department, the Chief Deputy Executive Director of the Denver

Department of Safety issued a “Departmental Order of Discipline

Action” (Departmental Order), determining that the officers violated

the Denver Police Department Operations Manual, Rules and

Regulations 105 (RR-105), “Conduct Prejudicial,” by failing to

adequately investigate a domestic violence incident. RR-105 states:

Officers shall not engage in conduct prejudicial
to the good order and police discipline of the
Department or conduct unbecoming an officer
which:

a. May or may not specifically be set forth in
Department rules and regulations or the
Operations Manual; or

b. Causes harm greater than would reasonably
be expected to result, regardless of whether the
misconduct is specifically set forth in
Department rules and regulations or the
Operations Manual.

Specifically, the Departmental Order determined that the officers

failed to fully investigate the reported domestic violence incident

and that they admitted they never separated the victim from the

3
man “when attempting to ascertain what occurred.” The

Departmental Order concluded that the officers’ conduct

constituted a “Conduct Category D” violation under the Operations

Manual and resulted in a presumptive penalty of a ten-day

suspension. The officers appealed the Departmental Order to the

Commission, which affirmed.

¶8 The officers then appealed to the district court under C.R.C.P.

106(a)(4), alleging that the administrative body acted arbitrarily and

capriciously and that the decision could not be upheld because

portions of the agency record were missing.1 The district court

affirmed the Commission’s decision, reasoning that there was

competent evidence to support its decision to impose sanctions

against the officers, including (1) video footage from inside the home

capturing the domestic violence incident and the officers’

interaction with the victim; (2) statements from the victim;

(3) statements from the victim’s daughter; and (4) statements from

both officers. The district court also reasoned that, while it was

1 The officers’ administrative proceedings were separate cases, but

the district court consolidated their separately filed C.R.C.P.
106(a)(4) actions.

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unfortunate that a portion of the record was missing, other

substantial evidence in the record supported the sanctions imposed

against the officers.

II. Standard of Review and Applicable Law

¶9 C.R.C.P. 106(a)(4) authorizes the district court to review

decisions of any governmental body or officer or any lower judicial

body exercising judicial or quasi-judicial functions. Johnson v.

Dep’t of Safety, 2021 COA 135, ¶ 16. We review the agency’s

decision de novo. Id. As a result, we review the administrative

agency or body’s decision, not the district court’s decision. Id. We

affirm an administrative body’s decision unless “the governmental

entity exceeded its jurisdiction or abused its discretion, which

occurs if the body misapplied the law or no competent evidence

supports its decision.” Id. (citation omitted).

¶ 10 For judicial review of agency decisions, “competent evidence is

the same as substantial evidence.” Burns v. Bd. of Assessment

Appeals, 820 P.2d 1175, 1176 (Colo. App. 1991). “Substantial

evidence” is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” City of Colorado

Springs v. Givan, 897 P.2d 753, 756 (Colo. 1995) (citation omitted);

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see also Kruse v. Town of Castle Rock, 192 P.3d 591, 601 (Colo.

App. 2008) (“A record lacking any competent evidence means that

the ultimate decision of the administrative body is so devoid of

evidentiary support that it can only be explained as an arbitrary

and capricious exercise of authority.” (quoting Widder v. Durango

Sch. Dist. No. 9-R, 85 P.3d 518, 526-27 (Colo. 2004))). We may not

weigh evidence or substitute our judgment for that of the

administrative agency. See Kruse, 192 P.3d at 601.

III. Analysis

¶ 11 The officers contend that the discipline imposed against them

is contrary to the Fourth Amendment to the United States

Constitution, as the victim revoked her consent for them to be in

the residence. They also contend that the City engaged in discovery

violations and spoilation of the record. We disagree with their first

contention and determine that portions of their second contention

were not preserved but that, even if they were preserved, any errors

were harmless.

A. Fourth Amendment

¶ 12 The Commission found that the officers knew that a possible

domestic violence incident occurred based on the call notes

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provided to them from dispatch, as well as the fact that the man

admitted to arguing with the victim earlier in the evening, and yet

the officers did not separate the victim from her abuser when

questioning whether she needed assistance.

¶ 13 The Commission’s findings are supported by the record.

Specifically, the victim’s daughter told a 911 operator that her

mother had called her five times; that she could hear her mother

say things like “don’t touch me”; that the phone would disconnect;

and that, in one of the calls, her mother “whispered” to call the

police.

¶ 14 One of the officers acknowledged that the man admitted that

he and the victim had argued earlier but denied that any incident

was occurring at the time. The man then led the officers to the

bedroom where the victim was located. Officer Finneran entered

the bedroom, while Officer Stuper waited outside the doorway,

creating a barrier between the man and the doorframe. But, as the

Commission found, the officers never established a visual or

auditory barrier between the suspect and the victim while Officer

Stuper questioned her.

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¶ 15 The lights were off in the bedroom. Officer Finneran shined

his flashlight on the victim and asked whether she was okay,

informing her that the officers had arrived to check on her. The

victim replied, “I’m okay, what’s going on? . . . [C]an you shut that

flashlight off?” The officer then asked whether he could turn on the

overhead light, to which the victim responded, “No, I’m trying to

sleep. What are you guys doing? I need you to get out.”

¶ 16 The officers left after an estimated three-minute investigation

inside the residence.

¶ 17 The Commission concluded that (1) the dispatcher’s call notes

sufficiently established exigent circumstances that would have

justified their continued presence in the home; (2) police training

required the officers to separate the man from the victim because

his presence made her less likely to be forthcoming; and (3) the

officers could have called for a third officer if they could not have

separated the parties due to officer safety, but failed to do so. As a

result, the Commission upheld the Departmental Order.

¶ 18 Although the Commission did not cite any specific case law,

we nonetheless agree with its Fourth Amendment analysis.

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¶ 19 Under the Fourth Amendment, a warrantless entry into a

home by police may be justified if there are exigent circumstances

or if an emergency exists. People v. Chavez, 240 P.3d 448, 450-51

(Colo. App. 2010). The two exceptions are distinct, as “the former

requires traditional probable cause while the latter requires an

objectively reasonable basis for believing immediate aid is required

inside.” Id. at 451. But sometimes “[t]he ‘emergency doctrine’

exception to the warrant requirement is but a specific example of

the exigent circumstances doctrine.” Id. (quoting People v.

Thompson, 770 P.2d 1282, 1285 (Colo. 1989)). In the case of

domestic violence, however, “the distinction between the two

doctrines often collapses because the same facts that give rise to

the exigency also provide probable cause of a suspected crime.” Id.

(quoting Amanda Jane Proctor, Breaking into the Marital Home to

Break Up Domestic Violence: Fourth Amendment Analysis of

“Disputed Permission,” 17 Am. U. J. Gender Soc. Pol’y & L. 139, 142

(2009)).

¶ 20 Courts have “accorded great latitude” to officers responding to

emergency reports of ongoing domestic violence. Chavez, 240 P.3d

at 451 (quoting United States v. Brooks, 367 F.3d 1128, 1136 (9th

9
Cir. 2004)). While courts have declined to hold that a domestic

violence situation creates a per se exigent circumstance, they are

“cognizant” of the difficulties these cases present when evaluating

the reasonableness of an officer’s actions. Id.

¶ 21 The officers rely on Chavez to argue that, despite a division of

this court upholding the reasonableness of the officers’ actions in

that case, the facts in this case are distinct. They contend that

exigent circumstances existed in that case based on the daughter

fleeing the home and reporting a domestic violence incident between

the mother and the father, which also included the daughter

reporting there were weapons inside the residence, even if they had

not been used during the altercation. See id. Here, on the other

hand, the officers contend no exigent circumstances existed

because no one had fled the home, and they had no reports of

weapons being present.

¶ 22 But some of Chavez’s principles are relevant to the

Commission’s view that the officers did not act reasonably, thus

violating RR-105. For example, the victim’s daughter had personal

knowledge of the incident, and because the officers had no reason

10
to believe the daughter would fabricate her report, her statement

was presumptively valid. See Chavez, 240 P.3d at 452.

¶ 23 The officers attempt to discredit or downplay the statements

made by the victim’s daughter by contending that, because they

had not spoken directly with her, they could not assess her

credibility. And they further note that the daughter mentioned that

her mother had a history of mental health issues and illicit drug

use. But based on these facts, the officers had no reason to

suspect the daughter, as the reporting party, might be fabricating

that (1) her mother had called her repeatedly; (2) her mother’s

statements were consistent with a domestic violence incident

occurring; and (3) her mother was asking for intervention.

Therefore, even under Chavez, the officers should have treated the

daughter’s statements to the 911 dispatcher about possible

domestic violence as presumptively valid. See id.

¶ 24 Likewise, the exigent circumstances the officers confronted

escalated — rather than decreased — when they arrived at the

location because, like in Chavez, the officers were presented with an

unlit house and then encountered the male who admitted that there

had been a verbal altercation between him and the victim. As the

11
Commission reasoned, the male’s admission of an earlier argument,

along with the dispatch information the officers had received, was

“sufficient to provide exigent circumstances to permit them to

investigate more thoroughly to determine whether the [victim] was

in need of assistance.”

¶ 25 Finally, unlike in Chavez, the officers did not separate the

parties, as their domestic violence training had taught them. The

victim’s later statement revealed that she did not feel safe to let the

officers know that she could not move from the bed due to her

extensive injuries but that if they had separated her from the

perpetrator, she would have told the police she needed help. We

conclude that, although the facts are somewhat different in Chavez,

the principles underlying an officer’s duty to investigate the

potential for domestic violence support the Commission’s evaluation

and ultimate conclusion that the officers acted unreasonably and

failed to fully investigate the situation.

¶ 26 The officers also rely on Georgia v. Randolph, 547 U.S. 103,

118 (2006), for the proposition that law enforcement officers must

immediately terminate a warrantless search upon an occupant’s

revocation of consent. But even if the officers viewed the victim’s

12
statements as revoking consent — as they claim they did — the

officers failed to mention that Randolph goes on to say, “[T]his case

has no bearing on the capacity of the police to protect domestic

victims.” Id. The Court further stated that if the police “have good

reason to believe such a threat exists, it would be silly to suggest

that the police would commit a tort by entering” a residence “to

determine whether violence (or threat of violence) has just occurred

or is about to (or soon will) occur, however much a spouse or other

co-tenant objected.” Id. In such a situation, the Court concluded

that “the question whether the police might lawfully enter over

objection in order to provide any protection that might be

reasonable is easily answered yes.” Id.

¶ 27 Given the totality of the record, we conclude that there is

substantial evidence to support the Commission’s decision

affirming the Departmental Order.

B. Discovery and Spoliation of the Record

¶ 28 Next, the officers contend that the Commission’s decision

cannot be upheld because the City (1) failed to disclose two videos

to them which the hearing officer relied on in violation of

Commission Rule 12; (2) failed to maintain the agency record

13
because two hearing transcripts are missing; and (3) untimely

disclosed over 200 pages of discovery a week before the hearing.

1. Undisclosed Videos

¶ 29 There are three videos that appear to be at play: two of which

were designated as City exhibits and are included in the record on

appeal and a third — not contained in the record — which consists

of a series of videos combined into one fifty-one-minute video.2 The

third video purportedly depicts the argument between the victim

and the male perpetrator, but it was not included in the internal

investigatory report leading to issuance of the Departmental Order

due to its “extremely graphic nature.” According to an internal

affairs memo, however, the video was maintained in the internal

affairs file.

¶ 30 Commission Rule 12, section 7, deals with discovery in the

context of disciplinary proceedings. As relevant, section 7(A)(1)(a)

states that the petitioner shall be provided reasonable access to or

copies of “[t]he full and complete Department Internal Affairs

2 To the extent the officers claim there is another video missing, we

can discern no mention of such a video in the record and assume
they mean the fifty-one-minute video since it comprises multiple
clips.

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investigation file(s) . . . upon which the disciplinary action is based

in whole or in part.”

¶ 31 We assume that the officers have been unable to secure a copy

of the fifty-one-minute video because it is not included in the

agency record on appeal. Therefore, to the extent the Departmental

Order relied on the video, even in part, to impose discipline, we

agree with the officers that the video should have been made

available.

¶ 32 But the City contends that this issue is not preserved. The

City asserts that the officers requested a continuance to view the

video. The officers now contend that they were provided with the

wrong one. As a result, the City argues that there is nothing in the

record to support that the officers took any action before the

Commission to rectify the situation, such as asking for another

continuance or filing a motion to obtain the correct video. It is true

that the officers did not seek further relief from the Commission.

We do not condone the City’s failure to provide the video to the

officers, as it was obligated under Commission Rule 12 to provide

them the file upon which the Department relied to impose

15
discipline. Even so, we ultimately agree with the City that this

issue is unpreserved.

¶ 33 While we generally do not review unpreserved issues in civil

cases, see Wycoff v. Grace Cmty. Church of Assemblies of God, 251

P.3d 1260, 1269 (Colo. App. 2010), we conclude that, even if this

issue was preserved, any error was harmless. In the civil context,

an error is harmless if it does not affect the substantial rights of the

parties. C.R.C.P. 61. “An error affects a substantial right only if ‘it

can be said with fair assurance that the error substantially

influenced the outcome of the case or impaired the basic fairness of

the trial itself.’” People in Interest of R.D., 2012 COA 35, ¶ 25

(quoting Bly v. Story, 241 P.3d 529, 535 (Colo. 2010)).

¶ 34 The City contends, and we agree, that the video would be

relevant only if the officers had intended to assert that the verbal

argument between the victim and the male perpetrator happened

after the officers’ visit, a contention they did not make below or

raise on appeal. In other words, while the video likely highlighted

how severe the domestic violent incident was between the victim

and the man, this does not change the facts in the record that the

officers failed to fully investigate the circumstances. Based on the

16
description of the fifty-one-minute video, we cannot say that having

it in the record would have changed the outcome of the proceeding

in favor of the officers. See R.D., ¶ 25.

2. Spoliation of the Record

¶ 35 Similarly, the officers contend that the record contains

insufficient evidence to affirm the discipline against them because

two hearing transcripts from December 6, 2022 and March 22,

2023 are missing from the record. They also contend that the

missing records violate their due process rights.

¶ 36 The December 6 hearing ostensibly concerned the City’s

failure to disclose the fifty-one-minute video and how the City would

address the situation. And the March 22 hearing was when the

officers testified to what occurred on the night of the incident. The

officers contend that the March 22 hearing contains the only

testimony from them which presented the facts of the underlying

incident that led to their discipline.

¶ 37 The officers concede that the loss of portions of an

administrative record does not automatically entitle them to

reversal of the agency’s decision. See Gilbert v. Julian, 230 P.3d

1218, 1221 (Colo. App. 2009) (despite missing documents the

17
agency failed to submit, the appellate court was able to conduct

meaningful judicial review of the issue raised on appeal); Goodwill

Indus. of Colo. Springs v. Indus. Claim Appeals Off., 862 P.2d 1042,

1046 (Colo. App. 1993).

¶ 38 Nonetheless, they contend that because the hearings dealt

with the discovery dispute concerning the video and their

testimony, the record lacks competent evidence to support the

imposition of discipline against them. We disagree for two reasons.

¶ 39 First, we have already concluded that the video issue was

unpreserved and that any assumed error was harmless. Because of

this conclusion, we also do not see how having the December 6

hearing transcript or video would have affected the outcome of the

proceeding in the officers’ favor. See R.D., ¶ 25.

¶ 40 Second, we disagree that the record does not contain the

officers’ testimony. True, we do not have their testimony from the

March 22 hearing, but the record contains audio recordings of the

predisciplinary hearings for both officers held on June 9, 2022, in

which they told investigators their positions. They have not raised

how their June 9 statements differ from the testimony they

presented at the March 22 hearing.

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¶ 41 More importantly, we agree with the City that, at hearings

before the Commission, agency decisions are not reviewed de novo.

Under Commission Rule 12, section 11(D), the Commission’s review

of an agency decision “shall be limited to” (1) new and material

evidence; (2) an erroneous interpretation of Departmental or

Commission Rules; (3) policy considerations that may have effect

beyond the scope of the case at hand; or (4) inconsistencies in the

discipline affirmed or imposed under similar circumstances.

¶ 42 The officers do not make any argument that they attempted to

raise new or material evidence at the Commission hearings that

would be different from the statements they made at the

predisciplinary hearings or that are reflected in the Departmental

Order. Likewise, under Commission Rule 12, section 11,

subsections (J)(4) and (J)(5) state, respectively, that, absent the

officers attempting to raise new or material evidence, “the

Commissioners shall rely only upon the evidence presented to the

Hearing Officer” and that “[a]ll findings of evidentiary fact by the

Hearing Officer shall be binding on the Commissioners[, who] may

not resolve disputed issues of fact.” Therefore, while we certainly do

not condone the City misplacing the transcripts of the Commission

19
hearings, absent the officers attempting to raise new and material

evidence, we cannot say that our agency review was impeded by the

missing portions of the record. Thus, we conclude there is

competent evidence in the record to support the Commission’s

discipline against the officers.

¶ 43 Likewise, to the extent the officers contend that the missing

portions of the record (and the missing fifty-one-minute video)

violated their due process rights, we conclude that their arguments

are conclusory and fail to cite any legal authority. Consequently,

we decline to address this issue as it is undeveloped. See Holcim

U.S. Inc. v. Colo. Pub. Utils. Comm’n, 2025 CO 1, ¶ 47 (a claim is not

sufficiently presented for appellate review when it is stated in a

conclusory fashion without legal citation).3

3. Late Disclosure of Documents

¶ 44 Finally, the officers challenge the late disclosure of over 200

pages of discovery a week before the Commission hearing. The

3 To the extent the officers rely on the State Administrative

Procedure Act, sections 24-4-101 to -109, C.R.S. 2025, for some or
all of their contentions relating to the discovery violations and
spoliation of the record, we need not address this argument
because we have resolved their contentions under the Denver Civil
Service Commission Rules, as appropriate.

20
documents included: the Denver Police Department Disciplinary

Handbook, the Denver Police Department Operations Manual,

training materials on domestic violence, and a PowerPoint regarding

domestic violence incidents. The City withdrew three of these four

exhibits at the hearing on December 6, leaving only the PowerPoint.

¶ 45 The City offered to let the officers’ counsel speak with the

City’s witness who was anticipated to testify about the PowerPoint.

The officers have not directed us to, nor have we been able to locate,

any reference in the record that defense counsel sought any further

continuances or rulings suggesting they were adversely impacted by

the late disclosure of the PowerPoint or that the City did not make

its witness available for questioning. Because the officers have

failed to show where they continued to object to the late disclosure

of the PowerPoint, we deem this issue unpreserved. See Wycoff,

251 P.3d at 1269.

IV. Conclusion

¶ 46 We affirm the Commission’s order upholding the Departmental

Order.

JUDGE PAWAR and JUDGE GOMEZ concur.

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